Lord Henley: My Lords, it is customary to offer thanks to the Minister for introducing such a long and complicated Bill. On this occasion, I offer my commiserations. We all know that it is not his fault and that he has to do as he is told. However, he must know that it is something of a farce.
	In this time of rising violent crime—and there is absolutely no point trying to deny that it is such a time—when the Government themselves are proposing that metal detectors be installed in schools to keep out knives and prisons are overcrowded, they bring forward a Bill like this, which has no coherence or theme and which has grown like Topsy since it was first introduced in another place. It has grown from one to two volumes, from 240 to 358 pages, from 129 to 202 clauses and, I think, from 23 to 38 schedules.
	The Minister comes before us today—the poor Minister—to say that they are proposing to remove two parts of that Bill, one of which was introduced only at Report in another place. Two parts—of 48 clauses—and, I presume, something in the order of nine of the 38 schedules will have to be struck out. This looks like chaos in legislation.
	As the noble Lord made clear, the Bill is wide-ranging in covering the criminal justice and law spectrum. We have the youth rehabilitation orders, sentencing and appeals. We were going to have the new Commissioner for Offender Management and Prisons for both the United Kingdom and Northern Ireland. However, we understand—because there is allegedly no consensus—that that is going to be taken out. I do not know if it is a lack of a consensus on our part which has meant that it needs to be taken out or whether it is some other lack of consensus. No doubt the noble Lord will tell us in due course.
	We are to deal with bail, legal aid and, in the criminal law parts of the Bill, with pornography, sexual offences, hatred on the grounds of sexual orientation, prostitution, self-defence and more. We have parts dealing with international co-operation, violent offender orders, anti-social behaviour, policing and clauses dealing with the question of whether prison officers can go on strike, as well as immigration issues.
	We must be grateful that the Minister did not go through the Bill clause by clause or we might have been here for a very long time indeed, but he has given us some idea of what is in the Bill, and I imagine that we will spend a considerable time on it when we reach the Committee stage. I mention all this to make it clear that, as I have said, there is a lack of theme to the Bill. There is no consistent message, but a whole series of measures—good, bad and indifferent, although I might have said good, bad and ugly. It is a sort of spaghetti western of a Bill. But we shall give all these parts close scrutiny in due course because some were barely discussed in another place; I shall get to those later on. The Minister himself would accept that we have a duty to look forward to what I suspect will be for him quite a testing Committee stage. In the presence of his colleague the noble Lord, Lord West, I hope that he will have some assistance from the Home Office and, looking at the sponsors in another place, possibly from Ministers in other departments such as the Department for Children, Schools and Families, which also seems to be involved, and no doubt the appropriate officials from all those departments.
	Like the Minister, I do not have time to go through the Bill clause by clause, but I do want to say just something about certain aspects of it. I am sure that other noble Lords will highlight other areas. However, I should make it clear that while on this occasion my noble friend Lady Hanham is not speaking at Second Reading, she will be joining us in Committee to deal with some of the Home Office aspects, particularly those related to immigration.
	I shall start by saying a little about youth rehabilitation orders, covered in Part 1. On this occasion I should like to offer the Minister a small degree of comfort by saying that I think we can give this measure some support, while expressing a considerable degree of concern about the potential inflexibility of the orders. We will need to know more about them and we shall certainly want to pursue some amendments to see how they fit together, particularly whether orders related to treatment for substance or alcohol abuse could be made compulsory. We need to make a detailed examination of this first part.
	In Part 2 we move on to dealing with sentencing. As the noble Lord made clear, this part will make some profound changes, such as doing away with the power of magistrates' courts to suspend sentences for summary-only offences. I presume that will mean that slightly more people will go to prison, although prisons are already bursting at the seams. At the same time, the Secretary of State is to be allowed to re-release non-dangerous offenders who breach the terms of their licence, which I presume is designed to release pressure on prison numbers. We also have the rather peculiar idea that credit will be given for periods on remand on bail just as if the individual had been locked up. I am not sure of the logic behind that unless it is again to keep down the pressure on prisons. That, too, is a measure we shall wish to pursue in Committee. It is one which I think the noble Lord will find is not necessarily as popular with the public as he thinks.
	Part 3 covers appeals. As I understand it, the Government are making a profound change following the case of the Crown v Mullin, which would allow the Court of Appeal to rule that a conviction will not be unsafe if it is satisfied that the appellant is guilty of the offence. I gather that, in another place, the Government agreed to look at this again. As I understand it—the noble Lord and I have both received the same brief—the Bar Council, the Criminal Bar Association, the Criminal Appeal Lawyers Association, the judiciary, Justice, Liberty, the Law Society and the Criminal Cases Review Commission have all expressed their concerns. The Minister might accept that some movement or flexibility would by wise on the part of the Government. They might be well advised to consider the advice coming from such bodies.
	The noble Lord says that Parts 4 and 5 need not concern us. I look forward to the noble Lord's amendment removing what now appears to be about a quarter of the Bill, along with—if he will give this confirmation—some nine schedules that seem to be dependent on Parts 4 and 5. When will we see those parts again, and in what legislation?
	Part 6 brings us to the remaining criminal justice provisions. Two in particular will need a considerable degree of scrutiny. First, Clause 104 deals with trial or sentencing in the absence of the accused in magistrates' courts and seems to create a presumption that the court will so proceed in such cases. As they already have a discretion in law to do so, does the clause really add that much? Perhaps the noble Lord will be able to enlighten us in due course. That cannot be said of Clause 105, which I suspect will effectively remove the role of lawyers in some summary cases. Again, we want to hear more from the noble Lord on that point.
	Part 6 is also indicative of how the Government—particularly the Home Office or what is now the Ministry of Justice—legislate. On page 83, in paragraph 519, the Explanatory Notes state, for Clause 103—it was originally Clause 84 when the Bill first started in the Commons—that,
	"Clause 84 introduces Schedule 22, which amends Schedule 3 to the 2003 Act".
	The two subsequent paragraphs set out just what Schedule 3 of the 2003 Act was to do, what the amendments it made achieved, and what will happen in due course. Then we are told in paragraph 522 that,
	"most of the provisions of Schedule 3 to the 2003 Act are not yet in force".
	So here we are repealing something that never actually came into force. It seems a strange way to legislate. As I said before in an earlier speech on a Criminal Justice Bill, perhaps in time the Ministry of Justice will make improvements in the way they manage things, removed from the dead hand of the Home Office. I do not know if that will be the case; I somehow doubt it. No doubt the Minister and the noble Lord, Lord West, can look to these things and see what they can achieve in due course.
	In Part 7, we move on from criminal justice to the criminal law itself. We find a whole array of diverse and disparate matters, as the noble Lord assured us. We deal with extreme pornography, prostitution, homophobic hatred, self-defence, nuclear material and facilities, and new penalties for unlawfully obtaining personal data. The Government might also consider some new penalties for incompetently losing personal data—something that the Government seem to know a great deal about at the moment. The noble Lord, Lord West, smiles ruefully. Perhaps we can leave that for an amendment at a later stage.
	My first point on this part of the Bill is that there will be problems of definition—the Minister touched on this in his opening speech—and a need for certainty or, at least, a degree more clarity. Secondly—this is particularly true of the measure on hatred on the grounds of sexual orientation—there will need to be compromise by all concerned to achieve a balance between preserving freedom of expression, as the Minister put it, while seeking the appropriate protection that the clause seems to offer. We on these Benches will enter into debates on that and other clauses and seek that compromise. Thirdly, we need to examine these clauses carefully—I am thinking, in particular, of the clause on self-defence—and consider whether what the Bill proposes does anything at all; or is it, dare I put it this way, grandstanding, so that the Government can claim they are doing something when all the Bill does is clarify the existing law without adding anything. We certainly sought to add something to the law of self-defence.
	We still have some seven parts of the Bill to go but, before I finish, perhaps I may touch on Part 9, which deals with violent offender orders, and simply mention the others, which will get their time in due course. The Minister has, quite rightly, made his declaration on the front of the Bill that its provisions are compatible with Convention rights, as did his right honourable friend the Lord Chancellor in another place. I ask the Minister to have another look. Is he absolutely sure and happy that these provisions are compliant? I particularly refer him to Article 6 on the right to a fair trial and Article 7 on retrospective punishments. It would be wise of the Minister to take advice and have another look at that in the light of his statement on the front of the Bill.
	I also note what the Minister had to say about blasphemy and blasphemous liable, and his other comments about the Church of England. We look forward to that debate and, in the light of recent letters they have written on the subject, to some former distinguished most reverend Primates taking part in it. It is a matter that we can deal with in good time and in its proper place.
	I remind the House and, in particular, the Minister, of the large aspects of the Bill that were not debated in another place. There was virtually no debate on prostitution, although I understand that since the passage of the Bill through the other place, three Ministers, including the Solicitor-General, all went at once to inspect the situation in Sweden and to report on the conditions there. Why it took three Ministers I do not know; it may be that they thought there would be safety in numbers. I leave that to them. There was no debate in the other place on the powers of the magistrates courts; no debate on pornography and sex offenders; no debate on personal data, which I imagine we all want to discuss again—I look forward to the contributions of the noble Lord, Lord West, on that subject; no debate on miscarriages of justice; and no debate on powers to restrict the Court of Appeal, violent offender orders, causing nuisance on NHS premises or tobacco sales—I could go on. The noble Lord will get the drift of what I am saying.
	We look forward to a busy Committee stage and to ensuring that all these matters are debated, and debated fully.

Baroness Howe of Idlicote: My Lords, I echo what noble Lords have said about the way in which this Bill has been handled, and, indeed, add my commiserations to the Minister who is in charge of guiding this Bill through your Lordships' House.
	Parts of the Bill are not only acceptable but welcome—these may include some of those to which the noble Lord has already said goodbye in Parts 4 and 5. However, it is a sad state of affairs when all the opposition parties in the other place, not to mention a number of the Government's own supporters, are so unhappy—I use a mild word—with the way it has been handled, particularly with the addition of so many new clauses at Commons Report stage, as we have heard, and the grotesquely short time given them to consider this huge Bill. Even the Minister of State, David Hanson himself, commented that,
	"if I were an Opposition Member I might well oppose the motion myself. I know that it will be very difficult for us to discuss some of the amendments before the House in the time that we have allocated".
	Unsurprisingly, the point was underlined by many speakers in the other place that this House now has a vast amount of work to do if we are, in the words of Edward Garnier,
	"to deconstruct the Bill and turn it into something resembling a proper Act of Parliament".—[Official Report, Commons, 9/1/08; cols. 308, 428.]
	I have no doubt that we shall do our best to achieve this. Our track record for doing so with many other Bills is very good. But it is, quite frankly, pretty disgraceful that this is the background to the Bill and that it comes to us clothed in such ill feeling.
	That prompts me to make some more general remarks about the way in which the Government approach the business of legislating in the criminal justice area. I speak from my background of years as a juvenile court magistrate, as a one-time member of the Parole Board, and as somebody who has been involved with many voluntary organisations working in this field.
	It simply is not a competent way to run a service to have so much legislation poured into those who have to work in the system and operate it, such as magistrates, probation and prison officers. As we have heard, the law is changed time and again. As Liberty reminds us, it is the Government's 37th criminal justice or policing Bill since 1997. I was horrified to hear the noble Lord, Lord Thomas of Gresford, say that the figure was 57, so there is a little inconsistency there. But the resources are simply not there for everyone to be properly retrained to meet the demands of this legislation. As we also heard, much of it is never implemented and some of it is repealed before it is even implemented. I suggest to the Minister that we would have a much better outcome from the criminal justice system if only the Government were more minded to listen to those who work in it and who struggle to do a good job in increasingly difficult circumstances.
	I have a complaint about something that was not much covered, if at all, in the Bill. On 6 December 2007, the Government published their response to the Corston report on women in the criminal justice system. As your Lordships will recall, the noble Baroness, Lady Corston, was commissioned to report to Ministers after the tragic deaths of six women in Styal prison. Her excellent report, published in March 2007, concluded against imprisoning, at huge cost, vulnerable women offenders who pose no risk to the public. Instead, the report called for the closure of women's prisons over a 10-year period, along with the establishment by the Government of some small custodial units for dangerous offenders and a larger network of support and supervision centres.
	These centres would be based on the existing successful community centres visited by the Corston review group and would provide access to services to help women deal with addictions, mental illness, rape and domestic violence, trauma and debt, while helping them gain skills and take responsibility for their families. A study undertaken by the New Economics Foundation and the Prison Reform Trust demonstrates conclusively that such an approach would be highly cost-effective.
	In my view, the Government's response to the review of the noble Baroness, Lady Corston, has been weak and insubstantial. Ministers agreed with the report's analysis of the problem and nearly all of its recommendations; but they have failed to support the key recommendations—first, for dedicated funding and, secondly, for establishing a women's commission to drive things forward. Ministers have also failed to use this legislative opportunity, which is being used for many other matters, to introduce any changes in the way that women are treated. Many other noble Lords will, I am sure, join me in expressing grave disappointment at this.
	I said earlier that I spent many years as a juvenile magistrate. Through that experience I learnt the importance of taking the greatest care when dealing with the damaged children who come before the courts, often from the most poverty-stricken backgrounds—poverty-stricken not just in terms of just money but in aspiration and preparation for life. If children are to survive such backgrounds and not grow up to be the residents of adult prisons until, sadly and often, they meet an early death, they need solutions that deal with what has happened to them and thus try to transpose their prospects. I fear that Keith Joseph's "cycle of deprivation" that he outlined many years ago is all-too-obviously alive and kicking today.
	Imprisonment is simply not the answer, but despite that the number of children and young persons under 18 in prison doubled in 15 years, from 1,405 in 1992 to some 3,000 last summer. I want to tell the Minister again what he has heard me and others say previously—children should not be in prisons or in establishments run like prisons. If they are dangerous to themselves and others they must be in secure settings, but which should be run on child care and human rights principles.
	So I welcome very much the involvement of the Department for Children, Schools and Families in the youth justice system and the appointment of the new chairman of the Youth Justice Board, Mrs Frances Done, who comes from a local authority background. But I cannot welcome the youth justice proposals in this Bill, because they constitute no more than a further fragment of piecemeal reform of the system and completely miss the opportunity to address its fundamental flaws. In particular, we need legislation and policy for children in trouble with the law to be made much more congruent with that which deals with children and families more broadly, in respect of welfare, safeguarding, education and health.
	I hope, too, that we can make some progress in Committee by introducing a much higher threshold for the use of custody. That is strongly supported by the Standing Committee for Youth Justice, the Local Government Association and the Joint Committee on Human Rights. I hope also that we can remove the possibility of violent offender orders being used for those under the age of 18. There are already sufficient powers to deal with that tiny and tragic minority of children who need continued supervision. It would be a great step forward if we could persuade the Government that breach of an anti-social behaviour order should not lead to a child being put into custody. That power does not exist in Scotland, so why do we need it here?
	I turn briefly to the measure on prostitution. I know that the noble and learned Lord, Lord Falconer, will speak on this; he has done much to raise awareness of the need for better treatment of women involved in this work. I welcome the provision that defines a brothel, but I fear that the proposals on compulsory rehabilitation, and the possibility of 72 hours' imprisonment for failure to attend this, will not make women safer. Instead, they will add pointlessly to the prison population and will not address the depth of the problems that some of these women face. I hope that we can persuade the Minister to look again at these proposals and to consider seriously their utility and practicality in terms of the use of resources. Is it intended that these measures should apply not only to those who work in prostitution, but also to those on the buying side? Surely there should be equal provision—although I would prefer that the whole of this area be taken out of the Bill.
	It is clear that this House has a long haul ahead of it. I look forward to hearing the concerns of other noble Lords about this Bill and particularly to hearing what hope the Minister can give us when he concludes.

Lord Low of Dalston: My Lords, I am normally fairly understanding of the exigencies of governing in the modern world, which necessitates a degree of improvisation and changes of plan in response to rapidly moving events, but the degree of improvisation attending the genesis of the present Bill surely goes beyond all bounds. To that extent I agree with the noble Lord, Lord Elystan-Morgan, who said that the Government needed to be responsive to events in legislation, but I think the Bill goes too far.
	I will not weary the House by repeating the catalogue of changes of plan, the number of new clauses and amendments and the lack of time for debate in Committee; noble Lords who have spoken before me today have gone over them many times already.
	More time has probably been spent on criticising the handling of the Bill than debating its provisions. Not only does the Bill give every appearance of being the Ministry of Justice's kitchen sink, into which to dump every bright idea knocking around, and some not-so-bright ideas, with little sense of coherence and even less consideration, but also the Government seem to be making it up as they go along,
	The Bill has been variously described as a hotchpotch and a ragbag. This makes it difficult to know exactly how to react. Again praying in aid the noble Lord, Lord Elystan-Morgan, I say that a degree of miscellaneous provisioning is necessary in criminal justice legislation as the system is progressively fine-tuned to meet changing circumstances. There is obviously, therefore, good as well as bad in the Bill. As well as being a ragbag and a hotchpotch, it is also a curate's egg. There is good especially where the Government are putting right failures of legislation that have gone before.
	On the other hand, one must doubt whether such a ferment of legislation is the best way to develop a rational criminal justice system. One might even say that the Government's approach to criminal justice legislation has suffered from attention deficit hyperactivity disorder. One may especially beg leave to doubt whether all the late changes, and some of the early ones, are so important and urgent as to require such a precipitate legislative process. Some of them could have waited and would certainly benefit from greater discussion. Of one thing, however, we can be sure: in my short time in this House, and on most of the occasions when I have attended a Second Reading debate, the Minister's stock response has been: "Well, it's pleasing to see that the Bill has been so widely welcomed on all sides of the House". I defy the Minister to make that response today.
	However, I shall concentrate the bulk of my remarks on the sentencing provisions in Part 2. It is no secret that the prison system is in crisis. Much of the crisis is of the Government's own making. According to research by the Prime Minister's strategy unit, there has been a 22 per cent increase in the prison population since 1997. This is estimated to have had the effect of reducing crime by around 5 per cent—I am not sure how one estimates that, but that is the estimate—but it is at a time when overall crime has fallen by 30 per cent due to other measures and trends. Notwithstanding that, the number of people found guilty by the courts has remained broadly constant: 1,645,000 in 1995 and 1,783,000 in 2005. The number of people given a custodial sentence by magistrates' courts has risen from 25,000 in 1993 to 57,250 in 2005: it has more than doubled. I repeat that that is at a time when crime is falling overall. The number of people given a custodial sentence at Crown courts has also risen, from 33,722 in 1993 to 43,986 in 2005. In particular, the introduction of a raft of mandatory penalties and, under the Criminal Justice Act 2003, of a new, indeterminate sentence for public protection has led to substantial inflation in sentencing.
	Against this background, the overall thrust of the sentencing provisions of the Bill has to be welcomed. I am not one to accuse Ministers of U-turns when I see them trying to put right mistakes of their own making. The Bill's intention is to reduce the prison population by a modest but useful 4,300—that is about 5 per cent of the present total—mainly through Clause 10 and Clauses 13 to 18. Clause 10, which abolishes suspended sentences for summary offences, is a step in the right direction. If it presaged an intention on the part of the Government to move towards a general presumption against imposing custodial sentences for summary offences, or even the abolition of custody all together, it would be even more welcome. As many speakers have said, prisons have become too much a dumping ground for the socially excluded. Much of the pressure on prison places could be eased if the Government's stated commitment to reserve prisons for serious and violent offenders could move from the realms of general aspiration to that of determination.
	The restriction on imposing community sentences in Clause 11 is a sensible measure, which appears to provide for greater use of financial penalties. The introduction of a system of income-related fines was recommended by the noble Lord, Lord Carter, in Managing Offenders, Reducing Crime in 2003. Day fines operate successfully in much of Europe and can, alongside diversion schemes, help to avoid unnecessary use of community sentences and imprisonment. However, one of the most misconceived innovations of recent years has been the sentence of indeterminate public protection, or IPP, which has been one of the main drivers in the increase in the prison population.
	I am indebted to the Prison Reform Trust, whose report on the pathology of IPPs has exposed how fundamentally flawed the IPP system is. IPPs have been heavily criticised also by, among others, the Lord Chief Justice, the chairman of the Parole Board and the Chief Inspector of Prisons. IPPs were aimed at offenders convicted of a serious violent or sexual crime and whom the judge believes pose a threat to the public. In practice, however, IPPs have not been used as was intended: as a specialised tool to deal with the relatively small number of dangerous violent or sexual offenders. Instead, they have been used more widely and for less serious crimes. As a result, they have bombed on two counts: they have fuelled an increase in the prison population and they have done nothing to reduce levels of violent and dangerous crime. Currently, there are three times more IPP prisoners than the Minister predicted during the 2003 Act's passage. By 2012, that number is expected to triple again.
	The USA has doubled its prison population during 15 years through risk-based sentencing that has the same logic as the IPP, yet it still has frightening levels of violent crime. It is a shame that the Government have not taken a little longer to reflect on the experience of the USA in that regard. If they are serious about refining IPPs, and not flooding the prison system or planting a time bomb for the Probation Service, they might start by refining the list of crimes that qualify for an IPP.
	Clauses 13 to 18 are thus part of the Government's leisurely repentance for a hasty and ill-considered measure. Raising the minimum tariff to two years is only common sense. Allowing the judge wider discretion in assessing dangerousness should also be seen as a welcome result of mature reflection.
	I was a criminologist for a number of years, but that was some time ago, so I am still becoming reacquainted with this area of policy. It has been clear to me from listening to the contributions of other noble Lords that I still have a great deal to learn before I am capable of rivalling their level of analysis. However, it would greatly assist me and, I hope, the House if the Minister answered a couple of questions.
	In a Written Answer on 27 November, the Government estimated that there were 428 IPP prisoners being held beyond the expiration of their tariff. Can the Minister tell us whether the situation has improved? "Exceeding their tariff" is a neat euphemism, evoking images of a Parisian café overcharging gullible tourists. In at least some cases, however, it signifies people imprisoned with no real hope of release, thanks to the unavailability of the rehabilitation courses that they need to attend to satisfy the parole board that they can be safely released. Will the Government provide figures on how many of the prisoners who have committed suicide since the introduction of IPPs were serving such sentences? This is far too important an issue to be lost behind the cost limits of parliamentary questions, as has previously been the case.
	Public protection is a worthy goal in criminal justice, but sooner or later prisoners are freed. On current rates, two-thirds of them will have committed another crime within a couple of years. Jailing people for public protection without rehabilitation is a cruel deception. I am still not sure whether these sentencing reforms stem from that understanding or necessity.
	Before I conclude, I want to say a word or two on the provisions in the Bill relating to unqualified legal representatives. Academic lawyers—and I know because I was once one—sometimes envy the earnings of their peers in legal practice, but never so much as the Government seem to. Lawyers argue that quality legal representation is one guarantee of justice. It will be said, "They would say that, wouldn't they?". But I share the concerns of other noble Lords about the proposals to extend the powers of non-legal staff to represent accused persons in court and hope that they will receive close scrutiny in Committee. Quality legal representation entails the expertise and advocacy skills that attend qualification for legal practice. I recognise that there are routine cases that can be handled other than by qualified barristers or solicitors, but I am not sure that the Government have adopted a sufficiently focused and targeted approach in Clause 105, which would allow non-legal staff to conduct a variety of very serious proceedings.
	The Minister might like to offer his reflections on research carried out in 2003 by the Crown Prosecution Service which showed that two-fifths of such staff had undertaken work beyond their existing remit. On this point, the reference to Section 3(2)(g) of the Prosecution of Offences Act 1985 is entirely opaque, and the Explanatory Notes are vague. Will the Minister write to me with a full list of the powers already assigned and the powers potentially assignable under the provision?
	Another aspect of quality seems to me even more vital than knowledge and skills—independence. Barristers and solicitors receive ethical training before they qualify, as well as years of training in the law and its practice. They are regulated to strict professional standards, owe allegiance to the court itself and depend on no one but themselves for career progression. These are not insignificant guarantees of independence. I do not think that any of them apply to non-legal staff. Failures of justice are not, to my mind, acceptable collateral damage from efficiency savings in the court system, and I look forward to returning to this in Committee.